Almost every American realizes that democracies are only as legitimate as their rules for counting the votes. Voter fraud is an unfortunate reality in this country that undermines citizens’ faith in the electoral franchise, but few agree on its pervasiveness. Recently, a number of states have moved to enact stricter voting laws based on a concern that voter fraud is a considerably underrated threat to our electoral system. Opponents of these laws maintain that lawmakers are engaging in partisan exaggeration to disenfranchise minority constituents, and numerous lawsuits have already been filed in both state and federal court. Texas is a salient example, and many predict that the recent ruling against its voter identification (ID) law will make its way to the Supreme Court in the near future.
Irrespective of the merits of Texas’ law, the surrounding debate has eclipsed other sources of fraud which are potentially of equal or greater concern. The Texas law is primarily aimed toward in-person voting fraud (i.e. people misrepresenting their identity or status in person at a voting location) rather than people who are voting through the mail because they are unable to go to their voting location on Election Day for acceptable reasons such as old age, disability, and military deployment. While the extent of mail-in voting fraud in Texas has never been comprehensively calculated, the state has a long and colorful history of the practice. The use of early mail-in ballots by Texas voters has increased over time, reaching record highs in the 2008 presidential election. As a result, the effects of mail-in fraud are becoming more and more apparent.
Throughout the state, there have been reported findings of mail-in ballots for deceased voters, or mail-in ballots for disabled or elderly voters who are not in fact disabled or elderly according to statute. However, the greatest incidence of fraudulent mail-in ballots seem to occur in South Texas, where there is a large population of elderly Hispanics who do not speak, read, or write English. Through an entrenched process referred to as “vote harvesting,” candidates for elected office seek out poorer individuals of the community who are enticed by the prospect of making extra money during election cycles. These individuals are hired as “canvassers” or employees of the campaign, and awarded a modest amount of money per mail-in ballot that they “coach” unsophisticated voters to fill out in favor of a candidate. These canvassers, more commonly known as “politqueros” (or political workers), are also given updated lists that contain information on each eligible mail-in voter in the community, who are then sought out and “assisted” with their ballots. This practice of vote harvesting is regularly employed for nearly every kind of local, state, and national office, and is not always limited to elderly Hispanic constituents.
Although many aspects of vote harvesting are clear violations of state law, lack of enforcement and minor penalties offer little deterrence. The Texas legislature passed tighter rules in 2003 for mail-in ballots and has periodically acknowledged the problem of vote harvesting in interim committee reports. Additionally, the Texas Attorney General created an initiative to counteract mail-in ballot fraud in 2006 after receiving a $1.5 million grant from the Governor’s office. Notwithstanding these measures, few prosecutions have resulted in convictions, and nearly all of those convictions have been misdemeanors. Meanwhile, southern jurisdictions are discovering significant amounts of mail-in fraud only after elections occur, sometimes requiring the results to be thrown out. A consortium of South Texas elections administrators in 10 counties unsuccessfully tried to catch legislators’ attention about mail-in fraud during the last legislative session when voter ID legislation was being proposed.
Mail-in ballot fraud reform poses unique legal challenges. An intuitive solution would be to increase the statutory penalties for mail-in fraud, but this might effectively result in the disenfranchisement of many voters who are currently provided lawful assistance with their ballots. Moreover, stiffer penalties would not have much of an impact without a corresponding increase in enforcement efforts. Nonetheless, it is arguably better to have a lesser number of valid votes cast through the mail than a greater number of fraudulent ones. Aside from politiquero situations, coercion of mail-in eligible voters is still an inherent risk. For example, the 2003 additions to the Texas Election Code exempt family members, spouses, or others registered to vote at the same address as the mail-in voter from criminal liability. This assumes that a closer relationship with the disabled or elderly person will serve as an adequate substitute for the protective arrangements that would otherwise be in place at a voting location (such as prohibiting voters from influencing each other while voting or being able to see which candidates another voter picks). These concerns could be addressed by sending state elections administrators to the homes of mail-in voters and/or providing more accessible early-voting opportunities near the areas where they live. However, measures like these likely exceed the available resources of state governments, especially as use of mail-in ballots increases.
Fraudulent ballots cast by mail undermine the integrity of elections just as much as fraudulent ballots cast in person. Given all the indications that mail-in voter fraud is a growing problem in Texas, it is surprising that state legislators of either party would focus solely on the latter. Regardless of the outcome of the voter ID episode, it is clear that whenever the Texas legislature decides to confront mail-in ballot fraud, the snowball will have rolled much further down the hill.
Andrew Lindsey is a second-year student at William & Mary Law School.